The Domestic Worker Bill of Rights –Frequently Asked Questions

General Questions

You are a domestic worker if you provide services related to the care of people in the home, or maintain private households or their premises. Domestic workers include nannies, childcare providers, caregivers and personal attendants, housekeepers, cooks, and other household workers.

A personal attendant is someone employed by a private householder or any third party employer recognized in the health care industry to work in a private household. Duties of a personal attendant include supervising, feeding, and dressing a child or person who needs assistance due to advanced age, physical disability, or mental deficiency.

If a domestic worker spends more than 20 percent of his or her time performing work other than supervising, feeding, and dressing a child or person who needs supervision, he or she is not considered a personal attendant. Domestic workers who are NOT personal attendants are entitled to overtime under Wage Order No. 15 (see Question 4 below: “What overtime protections apply to domestic workers who are NOT personal attendants?”).

Personal attendant duties include feeding, bathing, dressing, and direct supervision of any person under care.

Non-attendant duties include making beds, housecleaning, cooking, laundry, or other duties related to the maintenance of a private household or the premises.

Personal attendants are entitled to overtime (1.5 x regular rate of pay) for any hours worked over nine (9) hours per day or over 45 hours per week, unless they are excluded employees or the employer is excluded under the Domestic Worker Bill of Rights.

family members (parent, grandparent, spouse, sibling, or child of the employer)

someone under the age of 18 employed as a babysitter to a minor

anyone who is a “casual babysitter” (meaning someone who babysits on an irregular or intermittent basis and is not a babysitter by vocation)

anyone who provides services to the developmentally disabled through a state or regional center voucher program

anyone who provides child care pursuant to certain child care acts (the Child Care and Development Services Act of the Education Code or the California Work Opportunity and Responsibility to Kids Act of the Welfare and Institutions Code)

Excluded Employers consist of

domestic worker registry or referral agencies that satisfy the requirements of Civil Code section 1812.5095 and Unemployment Insurance Code section 687.2 (specifically, such a referral agency must meet all the requirements of the Civil Code as solely a referral agency)

licensed health care facilities

clients overseeing or receiving services under the In-Home Supportive Services (IHSS) program

The Domestic Worker Bill of Rights defines “domestic work employer” as any person, including corporate officers and executives, who directly or through an agent (such as temp services, staffing agencies, and the like), employs or controls wages, hours, and working conditions of domestic workers.

If you work in the home but you are NOT a personal attendant, then you are not covered by the Domestic Worker Bill of Rights. However, regular overtime protections apply under Wage Order No. 15, which sets overtime protections for domestic workers who are not personal attendants. There are different overtime protections depending on the type of work performed:

Non-live-in domestic workers who are not personal attendants are entitled to overtime (1.5 x the regular rate of pay) for hours worked over eight (8) in a day or 40 regular hours in a workweek; overtime for the first eight (8) hours on the seventh consecutive day of the workweek; double time (2 x the regular rate of pay) for hours worked over 12 in a day; and double time for hours worked over eight (8) on the seventh consecutive day of the workweek.

Live-in domestic workers who are not personal attendants are entitled to overtime for hours worked over nine (9) in a day and for the first nine (9) hours worked on the sixth and seventh consecutive day of the workweek. Live-in employees are entitled to double time (2 x the regular rate of pay) for hours worked over nine (9) hours on the sixth and seventh consecutive day of workweek.

Personal attendants who do not work in the home are not covered under the Domestic Worker Bill of Rights. Their employment may be governed under Wage Order No. 5, which governs the public housekeeping industry, including hospitals, sanitariums, rest homes, child nurseries and care institutions, homes for the aged, and similar establishments offering board or lodging in addition to medical, surgical, nursing, convalescent, aged, or child care.

Under Wage Order No. 5, a personal attendant is an employee hired by a non-profit organization to supervise, dress, or feed a child or an adult with disability or advanced age.

Personal attendants employed by non-profit institutions under Wage Order No. 5 are only entitled to overtime for hours worked in excess of 40 in a week or for any hours worked on the 7th consecutive day of the workweek. Personal attendants under Wage Order No. 5 are not entitled to double-time compensation.

Note that workers in the public housekeeping industry who devote more than 20% of their time to duties other than the work of a personal attendant are not considered personal attendants under this wage order. This specific subcategory of domestic workers is entitled to normal overtime protections (as specified in the Wage Order No. 5): overtime pay (1.5 x the regular rate of pay) for hours worked in excess of eight (8) hours in a day or 40 regular hours in a week. They are also entitled to double time (2 x the regular rate of pay) for hours worked over 12 in a day or for hours worked over eight (8) on the seventh consecutive day of the workweek (in addition to regular overtime for the first eight (8) hours worked on the seventh consecutive day).

Calculating overtime pay rates

Yes. Domestic workers are entitled to the minimum wage, with the exception of babysitters under the age of 18 and the employer’s parent, spouse, or child. The Labor Commissioner enforces the California minimum wage. The Labor Commissioner may enforce local minimum wage laws if the work is performed in a city and/or county that has a higher minimum wage ordinance.

Yes. Meal and lodging credits can be applied. However, an employer must abide by the limits specified in Wage Order No. 15. That is, meals or lodging may only be credited against the minimum wage if the employer and the employee enter into a voluntary written agreementbefore the work is performed. (This requirement applies to all types of domestic workers.)

LODGING

July 1, 2014

Effective Jan. 1, 2016

Room occupied alone

$42.33 per week

$47.03 per week

Room shared

$34.94 per week

$38.82 per week

Apartment – two thirds (2/3) of ordinary rental value, and no more than:

Apartment for single employee:

$508.38 per month

$564.81 per month

Apartment for couple employed by same employer:

$752.02 per month

$835.49 per month

MEALS (must be bona fide meals consistent with employee’s work shift)

Breakfast

$3.26

$3.62

Lunch

$4.47

$4.97

Dinner

$6.01

$6.68

Procedure for filing a wage claim

You can either file a wage claim with the Division of Labor Standards Enforcement (also known as the Labor Commissioner’s Office), or you can file a lawsuit in court against your employer to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for waiting time penalties according to Labor Code section 203.

After you complete and file your wage claim with a local office of the Labor Commissioner’s Office, your case will be assigned to a Deputy Labor Commissioner, who will determine how best to proceed based upon the circumstances. Initial action may be referral to a conference or to a hearing.

If the decision is to hold a conference, the parties will be notified by mail of the date, time, and place of the conference. The purpose of the conference is to determine the full amount being claimed and whether the matter can be resolved. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing.

At a hearing, the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) will be provided by the Labor Commissioner.

Either party may appeal the ODA to a civil court. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. If the employer appeals the Labor Commissioner’s decision, the Labor Commissioner’s Office may represent an employee who is financially unable to afford counsel in the court proceeding.

When the Order, Decision, or Award (ODA) is in the employee's favor and there is no appeal, but the employer does not pay the ODA, the Labor Commissioner’s Office will have the court enter the ODA as a judgment against the employer. This ruling has the same force and effect as any other money judgment entered by the court. After the judgment is entered, the Labor Commissioner’s Office will provide you with a letter explaining your collection options.

If your employer discriminates or retaliates against you in any manner whatsoever (for example by terminating you or giving you fewer hours), you can file a discrimination/retaliation complaint with the Labor Commissioner's Office. Alternatively, you can file a lawsuit against your employer in court.